Martin v. Crall et al Doc.

152

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

CIVIL ACTION NO. 3:05CV-P399-H

STEVE E. MARTIN PLAINTIFF

V.

DR. DOUGLAS CRALL, et al. DEFENDANTS

MEMORANDUM OPINION

Defendants, Scott Haas, Vertner Taylor, Larry Chandler, Barbara Hazelwood, Thomas

Mugavin, and Paige McGuire, have moved for summary judgment in this § 1983 claim for

deliberate indifference to a serious medical condition that concerned the treatment of his nose

and feet, as well as allegations of intentional infliction of emotional distress. The Court has

already dismissed all other claims. For a variety of reasons, the Court concludes that the

remaining claims should be dismissed as well.

I.

Plaintiff filed this action on July 7, 2005, alleging defects in his medical care before and

shortly after surgery on his nose. Plaintiff was diagnosed with cancer on his nose. Treatment

required the amputation of the nose, which occurred on July 14, 2003. He was not immediately

provided with a prosthetic nose. He was provided with a prosthetic nose after a period of time.

However, he now disputes whether the prosthesis is satisfactory.

Larry Chandler did not become warden of KSR until November 2003. He did not work

at KSR at the time of Plaintiff’s surgery. Plaintiff states only that Chandler was “behind Plaintiff

not getting his nose.” He also states that “Chandler, indirectly caused Plaintiff to lose his nose,

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and had the authority to correct this problem as it exists today, but has not taken any measures to

correct said problem.” Plaintiff further states that he believes “Warden Chandler has been

forcing the Doctors to make wrong decisions against Plaintiff, and his medical care.” He lastly

indicates that copies of letters concerning his feet were sent to Warden Chandler. There is no

evidence that Chandler made any of the medical treatment decisions concerning this case. Nor

did he participate in any decisions concerning a prosthetic nose for Plaintiff.

Barbara Hazelwood was formerly a deputy warden at the Kentucky State Reformatory.

Plaintiff alleges that Deputy Warden Hazelwood’s responsibilities included making medical

decisions for inmates and denying recommended care by outside doctors. The latest date in his

allegations appears to be indicated in a memo from Deputy Warden Hazelwood dated January 5,

2004 pertaining to appointments for his feet. For a period of time Hazelwood did have

administrative oversight of the medical department at KSR. These duties ended when she

became the deputy warden over programs on March 1, 2004. On September 16, 2004, she

became a deputy warden at Luther Luckett Correctional Complex. Even when she had

administrative oversight of the medical department at KSR, she did not make medical decisions

and could not order specific medical treatment or a prosthesis for an inmate.

Thomas Mugavin was formerly a deputy warden at KSR. He retired effective February

29, 2004. Plaintiff alleges that Deputy Warden Mugavin was aware of Plaintiff’s nose and its

condition and let the infection persist. He alleges that Deputy Warden Mugavin knew of the

problem with the nose because he saw the swelling and improperly refused to treat the nose. He

did not make any medical treatment decision concerning Plaintiff and did not have authority to

order specific medical treatment for Plaintiff. Medical treatment decisions were made by

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medical staff.

Paige McGuire is currently a deputy warden at KSR. She formerly had administrative

oversight of the medical department at KSR from April 16, 2004 to July 1, 2006. Plaintiff

alleges that McGuire impaired Plaintiff’s access to correct medical treatment. Plaintiff appears

to allege that McGuire knew that he was not receiving a prosthesis and that he was not receiving

treatment after his nose was removed. He alleges that she personally saw his nose, but did

nothing. He also asserts that McGuire “possibly told” nurses not to provide him with items to

care for his nose after surgery. Administrative oversight of the medical department included

supervising fiscal matters, handling personnel issues, and facilitating the operation of the

medical department. There is no evidence that she made medical decisions concerning Plaintiff.

Medical staff provided medical treatment and made medical treatment decisions regarding

inmate medical care at KSR. Paige McGuire did not have the authority to order specific medical

treatment or surgery. She had no authority to order a prosthetic nose for Plaintiff and did not

impair access to medical treatment for him.

Vertner Taylor was formerly the commissioner of the Department of Corrections, retiring

effective December 31, 2003. Plaintiff alleges that Taylor was commissioner while he was

seeking medical attention for his nose and that Taylor failed to intervene and correct the

problem. He alleges that Taylor was notified of the problem by a letter Plaintiff wrote to the

governor. Plaintiff also alleges that some grievances were sent to Taylor, but that some did not

reach him. No grievances were sent to Taylor in 2003. When Taylor was commissioner he did

not participate in the medical treatment decisions concerning Plaintiff’s nose, surgery, or

prosthetic nose.

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 Scott Haas became medical director for the Department of Corrections on July 1, 2004.

Plaintiff alleges that Dr. Haas took his time approving the surgery for the cancer on his nose and

this caused the cancer to spread to Plaintiff’s lymph nodes; that the surgery was Dr. Haas’ “sole

decision” and the operation was not approved soon enough; and that Dr. Haas denied the surgery

and is responsible for his injury.

There is no evidence that Dr. Haas was involved in the approvals for tests and surgery

concerning Plaintiff’s nose since he was not medical director at the time of Plaintiff’s operation

in 2003. Dr. Haas was involved in the final administrative review of a grievance concerning a

prosthetic nose after he became medical director with the decision dated December 20, 2004.

Plaintiff’s surgery occurred on July 14, 2003. Dr. Haas did not become medical director until

July 1, 2004 and he did not participate in the decisions concerning treatment and surgery for the

cancer on Plaintiff’s nose.

After an opportunity for discovery, Defendants have moved for summary judgment.

II.

The statute of limitations for a § 1983 action is the Kentucky one-year statute for

personal injury, K’S 413.140(1)(a). Wilson v. Garcia, 471 U.S. 261, 280 (1985); Collard v.

Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). Plaintiff brought this action on July

7, 2005. Any claim prior to July 7, 2004, is barred by the statute of limitations. These

circumstances manifestly eliminate some of the Defendants remaining in this action.

Several Defendants were no longer employed by the Department of Corrections on July

7, 2005. Vertner Taylor retired from the Department of Corrections effective December 31,

2003. William Seabold retired effective November 30, 2003. Thomas Mugavin retired effective

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February 29, 2004. Barbara Hazelwood was a deputy warden involved with administrative

oversight of the medical department at the Kentucky State Reformatory. She became Deputy

Warden of Programs on March 1, 2004, and no longer had administrative oversight of the

Medical Department after that date. Therefore, the constitutional claims against each of these

Defendants must be dismissed because they are barred by the statute of limitations. Therefore,

claims against her are barred by the statute of limitations.

Even if Plaintiff had been correct with his dates and Dr. Haas had been involved with the

decision concerning the surgery for the cancer on Plaintiff’s nose, all of this occurred prior to

Plaintiff’s surgery on July 14, 2003. All claims involving decisions about pre-surgery treatment,

surgery, and after care through July 7, 2004, are barred by the statute of limitations.

III.

Plaintiff alleges that Defendants were deliberately indifferent to his serious medical need

in violation of his rights under the Eighth Amendment because he did not receive a prosthetic

nose at the time he requested one. The facts show that Plaintiff disputes whether the medical

professionals provided the appropriate course of treatment for him. However, they certainly did

not ignore his condition or the treatment of it. Under such circumstances, the evidence does not

support a viable constitutional claim.

The Eighth Amendment prohibits cruel and unusual punishment dispensed in a penal or

disciplinary sense. Hamelin v. Michigan, 501 U.S. 957 (1991). This standard is applied to the

states through the Fourteenth Amendment. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). The

Supreme Court has held, ‘[i]n order to state a cognizable claim” under the Eighth Amendment

concerning medical care an inmate “must allege acts or omissions sufficiently harmful to

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evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97

(1976). The standard for deliberate indifference includes subjective and objective components.

See Napier v. Madison Co., 283 F.3d 739, 742 (6th Cir. 2001). When considering such a claim,

this Court asks whether the officials acted with a sufficiently culpable state of mind and whether

the alleged wrongdoing was “objectively ‘harmful enough’ to establish a constitutional

violation.” Hudson v. McMillian, 503 U.S. 1, 2 (1992), quoting Wilson v. Seiter, 501 U.S. 294,

298 (1991). The subjective component requires the offending conduct to be wanton in nature. It

must be composed of “malicious and sadistic acts whose very purpose is to inflict harm.” Moore

v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993). “It is obduracy or wantonness, not inadvertence

or good faith error, that characterize” deliberate indifference. Wilson v. Seiter, 501 U.S. at 299,

quoting Whitley v. Albert, 475 U.S. 312, 319 (1986). Any medical condition must be objectively

serious.

Allegations of medical malpractice or negligent diagnosis and treatment do not state a

valid claim under § 1983. Estelle v. Gamble, 429 U.S. at 106; see also Birrell v. Brown, 867

F.2d 956, 958 (6th Cir. 1989). Inmates are not entitled to “unqualified access to health care”

under the Constitution, and deliberate indifference is governed by “contemporary standards of

decency.” Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). Medical care must be immediately

necessary. Caldwell v. Moore 968 F.2d 595, 602 (6th Cir. 1992). If a plaintiff has received

medical attention, a court should not second-guess the judgment of the medical professionals

providing such treatment. Estelle v. Gamble, 429 U.S. at 107.

Plaintiff only states a disagreement with the medical care provided to him. Plaintiff

believed that the prosthetic nose was necessary. The physicians initially and reasonably decided

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to delay the prosthetic nose so that sufficient time could pass to indicate whether the cancer

would recur. The prosthetic nose was later provided. Plaintiff has not provided medical

evidence that the delay was detrimental to his health. There is no evidence that Dr. Haas or any

other Defendant was deliberately indifferent to Plaintiff concerning the provision of a prosthetic

nose. There is no evidence that the failure to provide an immediate prosthesis caused a further

serious medical condition.

Plaintiff also vigorously argues that the prosthetic nose provided is “badly made,

discolored, deformed” and mismatched to his skin. The disagreements with his physicians

became so heated that one allegedly told Plaintiff not to return. While this dispute may be real, it

falls far short of one with constitutional dimensions. It is a dispute about the appropriateness of

medical care. Defendants have certainly not ignored his condition. For these reasons, Plaintiff’s

claim concerning the prosthetic nose must be dismissed.

IV.

Plaintiff states that Defendants “solely intended to cause him emotional distress, extreme

emotional distress and outrage, by denying Plaintiff the needed operation.” The Court has

construed the complaint as asserting the state claim of intentional infliction of emotional distress,

also known as outrage, although Plaintiff is not particularly clear about this claim. The

Kentucky Supreme Court first recognized the claim of outrage or intentional infliction of

emotional distress in the case of Craft v. Rice, Ky., 671 S.W.2d 247 (1984). The court adopted

the Restatement (Second) of Torts, § 46, subsection 1, which sets out the tort. The tort of

outrage was intended as a “gap-filler” tort. It was intended to be available when another action

was not available and the “actions . . . [are] intended only to cause extreme emotional distress in

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the victim.” Humana of Ky. Inc. v. Seitz, Ky., 796 S.W.2d 1, 7 (1990). In Rigazio v.

Archdiocese of Louisville, Ky.App., 853 S.W.2d 295 (1993), the Kentucky Court of Appeals

stated:

Taking into account the history of the tort of outrage, and its reason for being as a
“gap-filler” providing redress for extreme emotional distress in those instances in
which the traditional common law actions did not, we believe that § 47 recognizes
that where an actor’s conduct amounts to the commission of one of the traditional
torts such as assault, battery, or negligence for which recovery for emotional
distress is allowed, and the conduct was not intended only to cause extreme
emotional distress in the victim, the tort of outrage will not lie.

Id. at 298-9. See also Banks v. Fritsch, Ky.App., 39 S.W.3d 474, 480-81 (2001). Plaintiff had

available to him the constitutional tort of deliberate indifference. There is no evidence that

medical treatment decisions concerning his nose and the few months time from Plaintiff’s

complaint until the surgery for cancer was intended only to cause extreme emotional distress.

Nor is there any evidence that the decisions and time frame for providing the prosthetic nose

were intended to only cause extreme emotional distress. Plaintiff also had available to him the

tort of negligence if he did not believe that his medical care was appropriate. The tort of outrage

or intentional infliction of emotional distress is not available to Plaintiff, since the constitutional

tort of deliberate indifference and the tort of negligence were available to him.

The Supreme Court described the elements of proof necessary to sustain a cause of action

for the tort of outrageous conduct in Humana of Ky. Inc. v. Seitz, Ky., 796 S.W.2d 1 (1990). The

court stated:

[W]e recognized the elements of proof necessary to sustain the

cause of action:
1) the wrongdoer’s conduct must be intentional or reckless;
2) the conduct must be outrageous and intolerable in that it offends against the
generally accepted standards of decency and morality;
3) there must be a causal connection between the wrongdoer’s conduct and the

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 emotional distress; and
4) the emotional distress must be severe.

Id. at 2-3. Plaintiff has not shown intentional or reckless conduct for Defendants for this claim.

He also does not meet the second element, which requires that the conduct complained of be

“outrageous and intolerable in that it offends against the generally accepted standards of decency

and morality.” Humana v. Seitz, 796 S.W.2d at 2. This is a high standard which few meet. The

Humana v. Seitz case involved a woman who gave birth to a stillborn child n the hospital.

Plaintiff alleged that nurses at the hospital ignored her complaints prior to the birth and during

the unexpected delivery of the child one of the nurses shouted at her to “shut up” because she

was disturbing other patients. Plaintiff also alleged that a nurse told her that the stillborn baby

would be disposed of at the hospital in response to her question about where the baby was being

taken after the birth. Id. at 2. The Court found as a matter of law that the plaintiff’s allegations

did not rise to the level required for the tort of outrageous conduct. Here, Plaintiff’s allegations

come nowhere close to those necessary to support the tort of outrage.

The Court will enter an order consistent with this Memorandum Opinion.

July 18, 2007

cc: Plaintiff, Pro Se

Counsel of Record